Galois

Discrimination and Intent

I, as well as many others, have long argued that prohibiting same-sex marriage is a blatant act of sex discrimination that has not been remotely justified.  One common response is that it cannot possibly be sex discrimination since both women and men are equally prohibited from marrying someone of the same sex.  We then point out that such reasoning was rejected in cases striking down interracial marriage laws.  The responders generally then illustrate several ways that situation is different.  Two of the reasons most often mentioned are (1) whereas the prohibitions on interracial marriage were based on notion of white supremacy, the prohibition on same-sex marriage is not based on any similar notion of male dominance, and (2) whereas racial differences are superficial, sex differences are real and fundamental,.  I will try to address a few other suggested differences at the end, but for now I want to focus on these two using this week's Supreme Court decision in Johnson v. California as a springboard for my analysis.

Johnson was a case which challenged the California Department of Correction's policy of racially segregating prisoners for up to 60 days each time they entered a new correctional facility.  The state argued that it's policy was "neutral" because all prisoners were "equally" segregated.  The court ruled that nevertheless just by using a racial classification the policy should be "immediately suspect".  The court emphasized that all racial classifications must be analyzed under strict scrutiny.  As for the "equal" discrimination argument, Justice O'Connor, delivering the majority opinion, wrote:

The CDC claims that its policy should be exempt from our categorical rule because it is "neutral"--that is, it "neither benefits nor burdens one group or individual more than any other group or individual." In other words, strict scrutiny should not apply because all prisoners are "equally" segregated. The CDC's argument ignores our repeated command that "racial classifications receive close scrutiny even when they may be said to burden or benefit the races equally." Shaw v. Reno (1993)

The cited case of Shaw concerned an instance of racial gerrymandering.  The court also made reference to another case, Powers v Ohio (1991), which demonstrated the idea that it was the mere classification that was the problem even if applied equally.  In that case jurors were excluded on the basis of race.  Even though the defendant was white and the excluded jurors were black, and even though jurors may have been excluded for being white to an equal degree, the policy was still suspect (and declared unconstitutional). 

We note that policies in Johnson, Shaw, and Powers all discriminated "equally" and in none of the cases could it be said that the state was motivated by any notions of white supremacy.  From the cases we should learn at the least that the mere act of classification can be troublesome regardless of whether a policy was motivated by ideas of one group being better than the other.  Still we ought to look at why the court has a policy of subjecting such policies to strict scrutiny in order to examine how situations of sex discrimination may be different.  There is almost certainly some difference, after all, as although we might expect sex based classifications in voting and peremptory juror challenges to be unlawful, it would be surprising if a court were to strike down sex segregated prison cells.

J. O'Connor explains one such rationale in Johnson:

The reasons for strict scrutiny are familiar. Racial classifications raise special fears that they are motivated by an invidious purpose. Thus, we have admonished time and again that, "[a]bsent searching judicial inquiry into the justification for such race-based measures, there is simply no way of determining ... what classifications are in fact motivated by illegitimate notions of racial inferiority or simple racial politics."  Richmond v. Croson (1989) (plurality opinion).  We therefore apply strict scrutiny to all racial classifications to " 'smoke out' illegitimate uses of race by assuring that [government] is pursuing a goal important enough to warrant use of a highly suspect tool." Ibid.

That is racial classifications, for some reason which we will explore, are especially prone to being motivated by illegitimate views including not only notions of racial inferiority but also by "racial politics".  What does the court mean by "racial politics"?  I can't be sure exactly, but based on the context of the above cases as well as those dealing with racial preferences in contracts and admissions, I take it to mean the view that racial identity is key to people's behavior.  Whatever it means we note that in instances of racial classification (unlike most other types of classification) the burden switches to the state to show that the classification is justified.

So why might racial classifications be especially prone to being motivated by illegitimate views, and do these same reasons apply to gender classifications?  Well, one reason may be that we have a long history of policies that used racial classifications that were based on these illegitimate motives.  This history has left any use of racial classifications automatically suspect.  Unfortunately we also have a long history of policies using sex classifications based on illegitimate motives. As Justice Brennan noted in a plurality opinion  in the case of Frontiero v. Richardson (1973) (a case argued incidentally by Ruth Bader Ginsburg):

There can be no doubt that our Nation has had a long and unfortunate history of sex discrimination.   Traditionally, such discrimination was rationalized by an attitude of "romantic paternalism" which, in practical effect, put women, not on a pedestal, but in a cage. Indeed, this paternalistic attitude became so firmly rooted in our national consciousness that, 100 years ago, a distinguished Member of this Court was able to proclaim:

"Man is, or should be, woman's protector and defender. The natural and proper timidity and delicacy which belongs to the female sex evidently unfits it for many of the occupations of civil life. The constitution of the family organization, which is founded in the divine ordinance, as well as in the nature of things, indicates the domestic sphere as that which properly belongs to the domain and functions of womanhood. The harmony, not to say identity, of interests and views which belong, or should belong, to the family institution is repugnant to the idea of a woman adopting a distinct and independent career from that of her husband. . . .

". . . The paramount destiny and mission of woman are to fulfil the noble and benign offices of wife and mother. This is the law of the Creator." Bradwell v. State (1873) (Bradley, J., concurring).

As a result of notions such as these, our statute books gradually became laden with gross, stereotyped distinctions between the sexes and, indeed, throughout much of the 19th century the position of women in our society was, in many respects, comparable to that of blacks under the pre-Civil War slave codes. Neither slaves nor women could hold office, serve on juries, or bring suit in their own names, and married women traditionally were denied the legal capacity to hold or convey property or to serve as legal guardians of their own children.  And although blacks were guaranteed the right to vote in 1870, women were denied even that right - which is itself "preservative of other basic civil and political rights" - until adoption of the Nineteenth Amendment half a century later.

It is true, of course, that the position of women in America has improved markedly in recent decades. Nevertheless, it can hardly be doubted that, in part because of the high visibility of the sex characteristic, women still face pervasive, although at times more subtle, discrimination in our educational institutions, in the job market and, perhaps most conspicuously, in the political arena.

Although Justice Brennan neglects to mention discrimination in the area of family law explicitly at the end, it is a theme that runs throughout the above passage.  We can see it not only in the restrictions placed on married women in the past, but especially in Justice Bradley's quote about women filling the "noble and benign offices of wife and mother".  Note that Justice Bradley's views were not based on notions of the inferiority of women, rather only that there was a certain "family organization, which is founded in the divine ordinance, as well as in the nature of things."  To combat such pervasive discrimination, even though it may have been with the best intent, many states passed Equal Rights Amendments or similarly adopted into their common law the idea that in matters of gender classification, just as in matters of racial classification, it is no longer necessary for the claimant to establish that the motives are illegitimate, but rather the state bears the burden by showing the classification is necessary to achieve some compelling interest. 

Although the burden rests with those using the gender classification to justify it, I should point out that many of its defenders do indeed resort to stereotypical notions about the proper roles of men and women.  This is seen quite often with those that defend the policy by claiming children need a mother and a father. Putting aside for the moment the fact that allowing same-sex marriage does not seem in any way to cause less children to have mothers and fathers, the arguments about why a parent of each gender is necessary are generally based on stereotypical assumptions about gender roles.  These notions can even be seen in the legal briefs of those defending the policy.  In addition to the direct appeal to traditional marriage, we also have one brief (pdf) in Washington using the following quote from David Popenoe's Life Without Father:

Through their play, as well in their other child-rearing activities, fathers tend to stress competition, challenge, initiative, risk taking, and independence.  Mothers in their care-taking roles, in contrast, stress emotional security and personal safety...While mothers provide an important flexibility and sympathy in their discipline, fathers provide ultimate predictability and consistency.  Both dimensions are critical for an efficient, balanced, and human child-rearing regime.

This leads us to the second claim about why matters involving racial classifications are different than matters of gender classification.  That is while racial differences are superficial, sex differences are real and fundamental.  Perhaps it is the fact that race is rarely relevant that makes it immediately suspect and perhaps therefore we should not extrapolate from decisions concerning racial classifications to cases involving gender classifications.  In a landmark decision concerning gender classification,  US. v. Virginia (1996), Justice Ginsburg did note that:

The heightened review standard our precedent establishes does not make sex a proscribed classification. Supposed "inherent differences" are no longer accepted as a ground for race or national origin classifications.  Physical differences between men and women, however, are enduring.  (internal cites omitted)

Such reasoning, though, should not be interpreted to mean that gender classifications do not need to be subject to heightened review.  They were subject to heightened review in the above case, and in states with ERA's they get subject to the same strict scrutiny as racial classifications.  This difference between race and sex will show up when the state attempts to justify the policy, it does not alleviate the need to justify.  And the court must remain skeptical of these attempts.  Justice Bradley's reason for denying women to the bar was, after all, based on differences between men and women.  To allow any difference to justify any policy would destroy any notion of equal rights.  Still, it is perhaps due to these differences that sex segregation in living arrangements can be justified in instances where racial segregation could not be.

So does the fact that "separate but equal" may sometimes be okay with sex segregation, but not with racial segregation mean prohibitions against same-sex marriage should not be subject to heightened scrutiny?  No. Even if we accepted a policy of "separate but equal" in general for sex classifications--and it is not clear that we should, as gender based admissions policies have been held suspect--it is important to realize that when it comes to our choice of spouse there can be no "equal" substitute like there can for say a dorm room.  As I have explained before, this was the reasoning used in Perez v. Sharp (1948), a case decided before Brown when separate but equal was generally allowed with regards to race in other facilities.  To use the reasoning of Perez, if we say a man is burdened on account of his sex by having to drive a longer distance to attend a nursing school when the nearby school is women only, how much more burdensome is it for the man to have to leave his life partner and find an "equal" substitute on account of his sex.  In fact, it is not simply more burdensome, it is impossible.

I want to conclude by addressing a few other suggested differences between the "equal" racial classifications and the instance of the "equal" gender classifications involved in marriage.  One is that whereas the racial classifications generally concerned matters of segregation, the marriage requirement is one of integration.  To this I note that the court would just as likely have found the CDC policy unconstitutional if it had required a cell to be shared by people of different races.   In fact, the court has consistently subjected policies of racial quotas to strict scrutiny.  The problem is in the use of the racial classifications in the first place.  Another suggested difference is that interracial couples could procreate and same-sex couples cannot.  This is properly an argument concerning the justification itself, and not about whether a strong justification is needed.  I would just note that this fails to be even a weak justification as one cannot reasonably argue that the state would like to confine marriage to couples who can or will procreate.  Finally there is the argument that marriage is by definition between a man and a woman and thus it is impossible for same-sex couples to be married.  We have seen in Massachusetts, Canada, and other countries around the globe, though, that same-sex couples certainly can be married under civil law.  This argument holds no more weight than those that would say women cannot be governors because a governor is, by definition, male. 

 

Oh, I Didn't Mean (Just) You

Katz still doesn't believe there was anything to take offense about since his first post didn't focus on me in particular just people who supported same-sex marriage and thought prohibiting it was both sex discrimination and sexual orientation discrimination.  And his second post was not entirely about me.  He did, after all, include et alia when he found it odd that people who were not following reason and who were fitting arguments to predrawn conclusions should be offended when that is pointed out.  Also, Katz says, he did point out that consistency wasn't everything and never said anything about being intellectually dishonest.  I just interpreted such phrases as accusations of intellectual dishonesty. 

Oh well, let us return to the main point of whether sexual orientation discrimination is a form of sex discrimination.  Katz says this isn't particularly important because if one argument is correct the other becomes moot.  Unfortunately, the issue has become quite important in both courts of law and public opinion.  A few judges and a number of people have said prohibiting SSM can't be sex discrimination because it is really sexual orientation discrimination, and sexual orientation is not a protected class nor should it be as it is a behavior and/or a choice and therefore there is no need to provide much (if any) justification for the discrimination.  But the flaw in the logic is the same one Katz makes, the assumption that sexual orientation is distinct and disjoint from sex discrimination.  As I pointed out sexual orientation discrimination occurs because one is penalizing deviations from one's traditional gender role.  It is thus absolutely a form of sex discrimination.

Katz continues to argue that one need not know a person's sex in order to discriminate against or for that person on the basis of sexual orientation.  One only needs to know that Pat is a homosexual, not whether Pat is a gay or a lesbian.  The whole point, though, is how do you know whether Pat is a homosexual?   Perhaps if the classification were based entirely on how one self identifies we could make the determination based on which box Pat checked on some form--are you (a) homosexual (b) heterosexual (c) bisexual?.  If the policy is going to have any meaning, or if there is going to be any way for anybody to challenge a certain classification there has to be some objective basis for determining whether somebody classifies as "homosexual". To make that determination one must classify based on sex.  Katz gives an example for that case at hand where the IRS does not need to know Pat and Nick's gender, only whether they are of the opposite sex.  How is the IRS going to know that, though, without knowing Pat and Nick's gender? 

Much of the confusion comes into play because of two different ways we might refer to sexual orientation.  On the one hand you could refer to it as an inate characteristic.  We are all born (or quickly develop) some sexual orientation and that orientation exists irrespective of our actions.  Some actions may be more or less likely depending on our orientation, and thus actions may give others clues as to what our orientation is, but one's actions can neither change nor uniquely determine for sure one's orientation.  In some sense I believe this is true, but there will never be express sexual orientation discrimination in this sense because one cannot classify based on this inate orientation alone.  There is no independent way of determining it.  So instead discrimination necessarily is based on actions associated with the orientation.  Some would even argue that there is no inate orientation, but only one's actions.  Either way we arrive at the same place.  When we talk about sexual orientation discrimination we must be referring to classifications based on one's actions.  But what actions are those that lead people to classify someone as homosexual or heterosexual?  They are always actions that depend on one's sex.  Pat may be classifed as a homosexual for marrying a man, but only if Pat is a man.  Pat may be classified as a homosexual for marrying a woman, but only if Pat is a woman.  That each gender has acceptable and unacceptable actions does not make it any less a matter of sex discrimination.  That we can encompass both restrictions by reference to "same" or "opposite" sex also does not change the fact that the restrictions are sex based.

Why Should I Be Offended?

Katz has responded (sort of) to my last post on sex and sexual orientation discrimination.  He seems to feel I was too focused on the word "consistency" and thus I missed his other points.  I thought I had responded to his main point that prohibiting same-sex marriage cannot be both sex discrimination and sexual orientation discrimination.  Either this was not his main point or I missed something, but to be sure I'm not missing anything this time I will respond to him carefully a few sentences at a time. 

It's a frustrating feeling:  I think if I'd used some other word than "consistent," perhaps those who've reacted to my "Whatever Works" post might have addressed the points other than the word. Perhaps the notion of consistency is particularly powerful among supporters of same-sex marriage, or something. (Whether their reaction is an indication of insecurity, I leave to readers to decide; I'm not sure either way.)

This is a rather juvenile and disgusting attack.  He accuses same-sex marriage proponents of being inconsistent, of doing "whatever works" to achieve its goals, of not standing on any principles, in short of being intellectually dishonest.  When I deny those serious accusations I'm told that my powerful reaction might be a sign of insecurity about whether I'm consistent.  Katz isn't sure either way (but we will see he continues to level the charges in this post).  The initial accusations were insulting.  The inference that since I was insulted the accusations are probably true is just stupid. 

Look, if the opposite-sex definition of marriage discriminates on the basis of sex, then there is no discrimination on the basis of orientation. Neither homosexuals nor heterosexuals can marry people of the same sex. The tenuous bridge between the two points from Yale Prof. Jack Balkin that I addressed is evident in his phrasing of the sex discrimination case:

It violates sex equality to tell a man he cannot marry another man when a woman could do so. It violates sex equality to tell a woman she cannot marry another woman when a man could do so.

Perhaps the distinction can be best phrased thus: the sex discrimination case is a matter of "can"; the orientation discrimination case is a matter of "want." If we apply the "can" of sex discrimination to orientation discrimination, we find that there is no legal discrimination. The "cannot" is universal.

It follows from this that the discrimination on the basis of sexual orientation is not done in the same manner as the discrimination on the basis of sex.  Katz's point is also well taken that the marriage statutes are facially neutral with respects to one's innate orientation.  It does not follow that there is no discrimination on the basis of orientation as I pointed out in my last post.  Let us proceed to how Katz addresses these points.  First I had noted that one could make a disparate impact claim.  Katz notes:

It may be the case that a legal regime that has made it a dramatic matter of law to peer into the hearts of men can trace back to discrimination from the outcome of a particular policy. Taking up that argument would require entry into another area of likely disagreement, however. Suffice, for now, to say that I reject disparate impact claims, at least when there isn't other information than the outcome to indicate invidious discrimination, and that I'm skeptical that homosexuals wishing to enter into opposite-sex marriages would have any greater difficulty finding spouses than do heterosexuals.

I too am quite wary of disparate impact claims which is why I would not make one here.  That being said it is an argument that courts have at times accepted and one could make it without being inconsistent in the least.  Katz has every right to disagree with such arguments in general, but just because you disagree with somebody's arguments does not make their arguments any less consistent.  Still, since this is not an area of disagreement over the matter at hand let us proceed to his response to my own viewpoint.

Consequently, Rosenberg takes another tack that, oddly, winds up requiring him to posit a scenario in which discrimination is desirable so that the two forms of discrimination can be made one and the same in a forced overlap:

I posited a scenario in which discrimination is desirable?  Desirable to whom?  I did note that all sexual orientation discrimination is a specific form of sex discrimination but I never said this was desirable.  I honestly have no idea what Katz is talking about here.  He quotes me as saying one cannot define sexual orientation without reference to sex and responds..

The obvious response to the first part of this quotation is that one can define orientation without reference to a particular person's sex: heterosexuals are attracted to people of the opposite sex, and homosexuals are attracted to people of the same sex. Although I can't come up with a circumstance in which one would know the gender of a person's significant other but not of the person him- or herself, I will venture to suggest that if one cannot classify the person, one cannot discriminate against him or her on the basis of that classification. The only way to discriminate is to know that the person is homosexual — meaning attracted to a person of the opposite [sic] sex, whichever that might be.

But this definition does make reference to one's sex.  For who is of the opposite sex and who is of the same sex depends on entirely on one's own sex.  I do agree with Katz that if one cannot classify the person one cannot discriminate against him or her on the basis of that classification.  Since one must classify on the basis of sex to classify on the basis of orientation, all sexual orientation discrimination must classify on the basis of sex (and thus I believe should be subject to heightened scrutiny). 

At best, what Rosenberg has proven is that a policy beginning with the goal of discriminating on the basis of orientation must discriminate on the basis of sex, as well. That is not the direction in which this argument proceeds, however — unless we follow the path of those uncharitable enough to assume bigotry before the first round of debate has even begun.

Unlike Mr. Katz who has made uncharitable assumptions on my motives throughout, I do not bother trying to attribute motives.  Either a policy discriminates or it does not discriminate.  What I have proven is that if a policy discriminates on the basis of orientation it must discriminate on the basis of sex.  It matters not whether the discrimination was itself the goal of the policy, which seems very unlikely, or whether there was some other goal with discrimination being used to achieve that goal, which is far more likely to be the case.  Either way one discriminates.  Katz is making the incorrect assumption that a policy of discrimination necessarily means the authors or advocates of that policy are bigots.  If that were the case supporters of affirmative action would be bigots, in fact we would all be bigots.

Once again, and with all due respect to Rosenberg et alia, the objective appears to be to fit argumentation to a predetermined conclusion. That's fine, as far as it goes; consistency is only one consideration in ideology, after all. But it strikes me as odd that people engaged in that approach would be surprised and offended that others find their arguments to lack the aggregate import that would exist were they following reason rather than preference to their conclusions.

With all due respect?  How could I be insulted by that?  No, really, how can I be insulted by that?  According to Katz's "reasoning", if I'm insulted that's just a sign that the accusation is true.  I believe I am following reason and I thought I had explained my reasoning quite well.  Nowhere do I see any actual disagreement with my arguments other than an unsupported belief that my arguments necessarily assign motives of bigotry.  Instead I am told that they "must" be after the fact arguments for a predrawn conclusion and that I'm inconsistent.  Again Katz provides absolutely no basis for either belief.  And he finds it odd that I would be offended by these accusations?  Throughout this blog I have explained why I find the prohibition of same-sex marriage to be unjust sex discrimination. In particular one could read through my SSM and Sex Discrimination category.  I tried to explain my views in detail in a series of three posts beginning with "What Bugs Me About Discrimination".  I am all for hearing disagreement with my views, but it is quite shocking to be told those aren't really my views but rather after the fact justifications for predrawn conclusions.  I am curious.  If that is the case, then why do I actually support same-sex marriage?  And why must I hide those reasons and offer these arguments instead?  I'm open to any guesses from anyone.

So what do we have?  Katz made an accusation.  I denied it.  He takes the denial to be a sign that the accusation was true.  He then repeats the accusation and finds it odd that one would be offended by the accusation since it is, after all, true.  Unbelievable. 

Sex and Sexual Orientation Discrimination

(UPDATED BELOW 2/27/05)

Justin Katz claims that the arguments for same-sex marriage are "internally inconsistent."  Why?  Well, Professor Jack Balkin presented five possible theories for why prohibiting same-sex marriage is unconstitutional.  In his post Katz explains why he disagrees with one of the theories Balkin presented, but never why any two of them are mutually incompatible.  It seemed to me that Katz believed it was inherently inconsistent to have more than one reason for some view.  Fortunately, in the comments we got some clarification on Katz's view.  Michael, who writes the blog thirdofthemonth, asked Katz to clarify what it was he found to be inconsistent and Katz responded that it was the sex discrimination argument and the sexual orientation argument that were incompatible because...

...if marriage is an individual right, it is not group right. Approach the "orientation" discrimination question from the perspective of an individual: the individual homosexual is not being discriminated against because he or she has the same exact range of options for entering into the institution of marriage as a heterosexual of the same sex has.

There is still nothing inconsistent here, though.  Katz claims that marriage is either an individual right or a group right, but it can't be both.  Why not?  As an individual one is establishing another person as one's spouse.  As a couple a pair is seeking legal recognition of their relationship.  Thus one could certainly view it as sex discrimination from the approach of the individual and sexual orientation discrimination from the approach of the couple.  From this viewpoint sexual orientation refers to traits of couples and not individuals.  That is there are heterosexual couples and homosexual couples but one's sexual orientation as an individual is defined solely by one's membership in a couple. 

Such a view would be entirely consistent, but I dislike its focus on the group over the individual. I do not believe the above definition is a good one for sexual orientation.  So let us suppose that we define sexual orientation as an individual characteristic.  That is one could be a homosexual and seek to marry a person of the opposite sex, or a heterosexual who seeks to marry a person of the same sex.  Is Katz correct that in this case, with the focus on the individual, one cannot make a sexual orientation discrimination argument because a homosexual and a heterosexual of the same sex have the same options in spouses?  Not necessarily.  Although the prohibition facially discriminates on the basis of sex and does not do so on the basis of sexual orientation, one could argue that while facially neutral it has a disparate impact on the homosexual population.  That is one could claim that while both heterosexuals and homosexuals must marry a spouse of the opposite sex, homosexuals have greater difficulty finding such a spouse who will marry them.  Now aside from the legal difficulties of disparate impact claims, I have trouble with this argument in that it forces one to consider whether homosexuals could find opposite sex spouses if they wanted to do so, when I believe they should not have to do so.

The reason there is no inconsistency, though, is more basic.  The fact is all sexual orientation discrimination is inherently a matter of sex discrimination because one cannot define sexual orientation without reference to one's sex.  Suppose you know a person is attracted to women or in a sexual relationship with a woman.  You cannot possibly decide whether to classify that person as homosexual or heterosexual unless you also know whether the person is male or female.  All sexual orientation discrimination concerns deviation from one's traditional gender roles.  A man is traditionally supposed to form an intimate relationship with a woman but instead does so with a man.  A woman is traditionally supposed to form an intimate relationship with a man but instead does so with a woman.  It is no coincidence that homosexual epithets get attached to individuals of either sex who deviate from their traditional roles in other ways (how they dress, how they behave, what interests they pursue, etc.)  So sexual orientation discrimination is not inconsistent with sex discrimination, on the contrary it is a particular form of sex discrimination.  For example, suppose the law stated that only men could become doctors and only women could become nurses. Certainly one could argue that is sex discrimination (even though both men and women are restricted in their career choices).  Yet one could also say that it discriminates specifically against women who wish to be doctors and men who wish to be nurses.  That it does so makes it no less a matter of sex discrimination.

Andrew Koppelman, in his book The Gay Rights Question in Contemporary American Law, points out another problem in treating sexual orientation discrimination as something distinct and even inconsistent with sex discrimination.  He writes (pp. 61-62):

Francisco Valdes's extensive study of the caselaw [83 Cal. L. Rev. 1, 119-207, 308-14 (1995)] finds that, in cases involving straightforward sex discrimination, defendants have often succeeded by imputing homosexuality to the plaintiff on the basis of the plaintiff's purported gender atypical behavior.  Gender stereotyping is supposedly forbidden by sex discrimination law, but the decision to permit sexual-orientation discrimination has created a huge loophole that has been deployed even against heterosexual plaintiffs.

For these reasons I generally don't refer to sexual orientation discrimination on this blog.  It is not because it is inconsistent with my firm belief that prohibiting same-sex marriage is a matter of sex discrimination.  Rather it is not really distinct from that belief. 

Update (2/27/05):  For more on the sexual orientation discrimination as sex discrimination see this denial of summary judgement (pdf) from the District of Massachusetts in 2002 in a harrasment suit Centola v. Potter.  The defendants argued that the harassment was on the basis of sexual orientation and not sex.  The court noted, however

But the line between discrimination because of sexual orientation and discrimination because of sex is hardly clear. Sex stereotyping is central to all discrimination: Discrimination involves generalizing from the characteristics of a group to those of an individual, making assumptions about an individual because of that person's gender, assumptions that mayor may not be true.:..

Stated in a gender neutral way, the rule is: If an employer acts upon stereotypes about sexual roles in making employment decisions, or allows the use of these stereotypes in the creation of a hostile or abusive work environment, then the employer opens itself up to liability under Title VII’s prohibition of discrimination on the basis of sex.
This is the nub of Centola's complaint: Co-workers and supervisors, he claims, discriminated against him because he failed to meet their gender stereotypes of what a man should look like, or act like. In so doing, they created an objectively hostile and abusive work environment in violation of Title VII....

Sexual orientation harassment is often, if not always, motivated by a desire to enforce heterosexually defined gender norms. In fact, stereotypes about homosexuality are directly related to our stereotypes about the proper roles of men and women. While one paradigmatic form of stereotyping occurs when co-workers single out an effeminate man for scorn, in fact, the issue is far more complex. The harasser may discriminate against an openly gay coworker, or a co-worker that he perceives to be gay, whether effeminate or not, because he thinks, "real men don't date men." The gender stereotype at work here is that "real" men should date women, and not other men.

 

Tradition, Tradition!

In the courts, states have had a hard time explaining what possible justification there can be for denying same-sex couples the right to marry.  The two most common arguments given in the past are that the state would like to restrict marriage to couples who can procreate and the state would like provide the best environment for raising children.  More and more courts though have pointed out the severe problems with these arguments.  The first must deal with the fact that the state allows--and at times makes it easier--for non-procreative couples to wed.  While it is true that under the rational basis test a statute may be over-inclusive or under-inclusive in achieving its goals it seems laughable to suggest that the state does not really want non-procreative couples to marry and does so only through oversight or lack of convenient way to prevent it.  The second argument fares even worse.  It tends to backfire as courts agree that marriage can be vitally important to the children involved and thus the state has no business denying the children of same-sex couples this invaluable protection.  It is not surprising then that many states have recently stopped making these arguments (although Washington is one notable exception to this trend). Instead states like New Jersey, New York, and California have switched primarily to a claim that the state has an interest in preserving the traditional notion of marriage.  It is for the sake of tradition that same-sex couples must be excluded from marriage. 

I am actually somewhat sympathetic to the tradition argument.  First of all, unlike the other arguments present above I believe this one is sincere.  I think many people do oppose same-sex marriage because it disrupts their traditional concept of marriage.  This can explain why support for civil unions for same-sex couples has generally been stronger than that for marriage.  Civil unions provide a way to offer some of the protections of marriage without breaking from tradition.  It also explains why many groups opposed to same-sex marriage talk about supporting, protecting, or defending traditional marriage but we don't see proposals for license plates asking to support procreative marriage.   

I also find myself agreeing that tradition is important.  It provides stability and continuity with the past.  Tradition can be quite comforting and reassuring as we constantly face changes throughout life.  It can be particularly distressing to see changes to traditions concerning family and religion as they are areas we associate with continuity and comfort.  Because I find tradition so important I would concede that it could be a rational basis for legislation. There is something to be said for continuing to do something the way it has been done provided there is no good reason to change.  But of course that is not the situation we face with same-sex marriage.  The law as it stands violates our right to equal protection and harms families.  When tradition is accused of being discriminatory it is hardly a defense to say that the discrimination is traditional.

This is particularly the case when we deal with traditions concerning the role of gender in our society.  Traditions have long dictated distinct roles for women and men.  In our present day those traditions have come into conflict with our ideals of equality and liberty.  There is a belief that we should all have equal opportunities without regard to our gender; and we should have the  liberty to pursue  our dreams without the government using our gender to dictate our decisions for us.  These new beliefs have caused many of our traditional laws to change.  Some of those changes were initiated through the legislative process, some through executive orders, and many have come through court orders.  The area of family law has been especially ripe for change in this regard.  The role of each gender was perhaps no where more differentiated than in the home.  At one point a woman lost all separate legal identity at the time of marriage.  Only the husband could own property.  These laws were challenged, often in the courts.  If tradition had been an acceptable defense, the laws of marriage would not have changed.  If tradition had been an  acceptable defense, VMI would still exclude women.  Fortunately our new ideals won out over or older traditions.

I find it remarkable to read in the same legal brief that the laws forbidding same-sex marriage have nothing to do with gender discrimination and a few pages later that they are necessary to preserve our traditions regarding marriage.  Do they not realize that the tradition to which they appeal is one based upon the same gender discrimination they deny exists?  Yes marriage has generally always been between a man and a woman, but when in that time has it not also always defined distinct gender roles? 

It is difficult to resolve the tension between tradition and change.  Too rigid an adherence to tradition prevents us from progress in achieving our ideals.  A rush to change in blindness to tradition can leave us feeling adrift and lost.  The key must be not to abandon our traditions wholesale, but rather to gradually modify them when and where necessary so that our traditions evolve.  That is what has happened with marriage as we have seen it gradually lose its gender based distinctions emphasizing instead aspects of mutual responsibility and commitment.  To keep the gendered entrance requirements of marriage based upon an allegiance to these past traditional distinctions would be a repudiation of the changes we have made toward gender equality.  No court should be making that repudiation.

 

New Jersey's Balancing Test

Last week I mentioned how the Washington State Supreme Court was about to hear oral arguments in two same-sex marriage cases.  As the other same-sex marriage cases around the country are currently before lower courts Washington will almost certainly be the location for the next major development in the movement for same-sex marriage.  Still that won't be for some time.  Arguments won't be heard until March 8 and it will likely be several months or more after that before a decision is handed down.  Before then we will likely hear from at least two lower courts on the subject. These decisions will be far less significant as they will undoubtedly be appealed, nevertheless it will be interesting to see what conclusions are reached and why in those cases.  In California, San Francisco County Superior Court Judge Richard Kramer heard arguments in the case of Woo v. Lockyer at the end of last December.  A decision from him is expected any day now.  Likewise a decision is expected shortly in the New Jersey case of Lewis v. Harris which is currently before the New Jersey's Appellate Division of Superior Court an intermediate Appellate Court.  A panel there heard oral arguments last December 7.  It is this case I would like to focus on today.  Last May I introduced my readers to the families involved and some of the harms they suffered.  Today I thought I would try to explain the arguments presented as I understand them.

In most other states and in the federal courts when there is a claim of a denial of equal protection or due process the court first determines what level of scrutiny to apply (basically the idea is how much deference to give to the legislature).  In general the court gives the legislature great latitude and the legislation must only be shown to be rationally related to achieving a legitimate state interest.  If the legislation infringes on a fundamental right, though, or if it discriminates against a suspect class (or perhaps on a suspect basis), it will be held to a higher standard and the state will have a heftier burden.  It will have to demonstrate both that its interests in the legislation are more important, and that the legislation is more likely to be necessary to achieve these goals. 

The New Jersey courts, however, have tended over the past thirty years to use a different scheme when analyzing violations under the state constitution.  They use a three part balancing test when dealing with equal protection and/or due process claims.  The court asks (1) What is the nature of the plaintiff's interest being affected? (2) How much of an intrusion is there upon those interests? And it weighs those answers against (3) How great is the public need for that intrusion?  The result of this test will often lead to the same conclusion as the traditional federal test, but the New Jersey Supreme Court has found the balancing test offers a more flexible approach that can better get to the key clash between individual and governmental interests that lie at the heart of these disputes.  So let us look at how the plaintiffs answer the above questions in this case.

(1)  Plaintiffs have extremely weighty interests in marrying their chosen partner.  They spend 36 pages explaining how everybody has such extreme interests and these interests do not diminish because one's partner happens to be of the same sex.  Here is a very brief outline of how important marriage is to a couple (quotes are from appellant's brief):

1. Marriage expresses the deepest possible personal commitment of a couple to one another.  "Many individuals do not want to intertwine their life so deeply with the life of another person unless there is every reason to believe that each will give the maximum effort to succeed in the relationship, and marriage is widely considered the best vehicle for doing so."  This commitment can help couples get through difficult times.
2. "Marriage is an expression of one's values and beliefs."  "The expression of one's values can be particularly important for parents who want to be role models for their children and impart their beliefs in the importance of marriage."
3. Marriage is in itself the realization of a shared societal dream.  "For many, marrying and settling down to raise children is at the core of dreams for their future, a central way to participate as an adult in our society."  This dream is not just one for the couple getting married but often for their parents and family as well giving them some security that their loved one will be secure and well cared for through life (both emotionally and materially).
4. "Marriage is a gateway to a comprehensive legal structure that strengthens and supports families."   This structure is truly comprehensive and includes both responsibilities and benefits.  One cannot duplicate this structure piecemeal through some alternate structure like domestic partnerships.  "The broad matrix of interlocking rights and responsibilities created through the singular status of legal marriage reaches into virtually every dimension of a couple's life and provides a level of support for the relationship unparalleled anywhere else in the statutory framework." One area in particular that threatens the welfare of children in these families is the benefit of automatic and immediate legal relationship to both parents of a child conceived through assisted insemination as opposed to the current situation of a lengthy, costly, and intrusive adoption process.
5. Because of the deep public commitment involved in marriage it opens the door to a web of social support that "further builds and shelters the family."  That is just by knowing that a couple is married the rest of society can presume a certain level of commitment and obligation the couple has to one another and treat them accordingly.  This can be extremely important in emergency medical circumstances.

Note that these interests apply just as well to same-sex and opposite-sex couples.  There is no getting around how important marriage can be for the individual and the family and that importance does not depend on gender.

(2)  The couples are completely excluded from this vital institution.  No domestic partnership plan can replace the vast significance of the marital relationship.

(3)  The only interests expressed by the state were a need to preserve the traditional definition of marriage and to maintain uniformity of laws with other states.   The couples' attorneys argue that preserving a definition cannot itself justify an infringement.  The whole question is why this definition is vital to the public need and the state avoided that question.  As for the need for uniformity, the laws of New Jersey and in particular family laws already differ from other states.  If the New Jersey constitution forbids a certain discrimination it cannot be justified because other states allow it. 

The trial court pretty much rejected not only the plaintiff's claims, but the whole balancing test analysis by saying marriage was by definition between a man and a woman, so no rights were infringed here.  They also pointed out that plaintiffs could still marry somebody else or get a domestic partnership.  This sort of defense by definition rationale for prohibiting same-sex marriage has been rejected by most courts in the past 15 years so it will be interesting to see how the Appellate Division reacts to it.  We should know soon. 

The Fundamental Right to Vote

(Updated 2/12/05)

I want to return to the argument made by some that if we say the fundamental right to marry can be used to strike down prohibitions against same-sex marriage, it must therefore be able to be used to strike down prohibitions against polygamy.  I simply don't see how this is supposed to follow.  The argument for same-sex marriage is not that there can be no regulations with regards to marriage.  On the contrary if the state is going to recognize marriage in any way there must be laws deciding how we determine whether two people are married and what are the consequences of that determination.  Same-sex marriage proponents merely claim that in a free society the choice of whom one marries must reside with the individual and not the state absent some compelling governmental interest in restricting that choice.   This seems clear to me, but  not to others so perhaps I am not understanding  them or they are not understanding me, or both.  To try to make myself better understood I thought an analogy might be helpful.

I believe we have a fundamental right to vote.  This does not mean I believe that the state should not be able to regulate voting.  On the contrary it must if the vote is to be recognized in any way.  Rather I believe that in order for the right to vote to be meaningful it must not only include the right to cast a ballot for somebody but it must also necessarily include the right to cast a ballot for the candidate of our choice.  That is in a free society the choice of whom one votes for must reside with the individual and not the state absent some compelling governmental interest.  Because of my belief in this right to vote I would be suspect of even those restrictions which placed parallel burdens on different segments of the society.  For example, suppose the law required that there be one senator of each sex from each state.  This law burdens men and women equally.  Neither group is advantaged or disadvantaged by it.  Nobody is excluded from running for Senator nor is anybody excluded from voting.  There may even be a legitimate goal advanced by this proposal.  It would result in a Senate that, in terms of gender, more accurately reflected the population.  Every state would have a Senator of each gender and the two would "complement" one another, and so forth.  I believe such a policy, though, would violate our fundamental right to vote for the candidate of our choice.

Does it follow that the legislature must permit anybody who so chooses to vote for as many candidates as they would like?  Such a system, as in approval voting, could work.  In fact I think it would be a better system than we currently have. But I do not think there is a right to such a voting system.  The right to vote cannot include the right for us to each decide which voting system we would like to use.  Every person has the right to vote (barring a compelling reason to disenfranchise), but not the right to vote for as many candidates as one would like.  In a similar manner while the state would need a good cause to deny someone the opportunity to run for office, it is certainly reasonable to restrict the person to one office at a time.      

UPDATE:  In introducing this post at MarriageDebate.com, Eve Tushnet writes:

Not sure how far this gets you given that a) a huge part of the SSM debate is over whether sex difference is relevant to marriage in a way that it is not relevant to being a senator, and b) a lot of the "ssm-->polygamy" claims rest on particular rationales for ssm that are different from the anti-sex-discrimination rationale that Gabriel finds most persuasive.

Let me address Eve's second point first.  Although it is true that I find the sex discrimination argument the most persuasive, this post was based on a different argument, namely the fundamental right to marry. When in my analogy I compared it to a situation in voting where lines were drawn based on sex I did so to try to parallel to some extent the situation we face in marriage.   In doing so, though, perhaps I obscured the right to marry argument somewhat.  If it helps let us suppose a different restriction on the right to vote.  Perhaps the legislature decides that in order to combat political corruption and undue influence they were going to prohibit anybody from voting for anybody with whom they are related or with whom they have done business in the past.  Again I suspect this would be unconstitutional even though everybody would still be eligible to vote and the law is applied to everyone.

As for Eve's first point, I simply note that how sex difference is relevant to marriage would arise in evalutating the state's interest in prohibiting SSM (or how it's relevant to governing and representation would arise in its interest in requirng a senator of each sex).  That would not have anything to do with whether a compelling interest were needed. 

ERA in Washington

On March 8 the Washington State Supreme Court will hear oral arguments in two same-sex marriage cases.  In both cases the lower courts ruled that Washington's state DOMA violated the state constitution and that same-sex couples had a right to marry in Washington.  In the first case, Andersen v. King County, eight same-sex couples, represented by Lambda Legal and the Northwest  Women's Law Center, filed suit against King County (which includes Seattle) because they were denied marriage licenses.  Judge William Downing ruled (pdf) that the fundamental right to marry includes the right to choose whom to marry and the state had no rational, let alone compelling, interest in restricting that right here.  In the second case, Castle v. State, eleven same-sex couples, represented by the ACLU of Washington, similarly filed suit against the state.  In that case Judge Richard Hicks ruled (pdf) that by not allowing same-sex couples to marry the state was violating the Privileges and Immunities clause of the Washington State Constitution again as there was little in the way of state interests for the ban. 

Both judges noted that it would seem quite possible that the state Equal Rights Amendment might also forbid the restriction, but they were bound by an earlier 1974 decision Singer v. Hara (pdf) of an intermediate Washington court which ruled that since marriage was by definition between a man and a woman there was no discrimination.  They also both noted that said decision has come in for much criticism for failing to engage in any analysis and based on more recent cases seemed to be on shaky ground, but they were still bound by it.  They practically invited the State Supreme Court, though, to overturn that decision.  The Court will certainly have that opportunity when it renders its decision on these cases sometime in the coming year. 

I am a firm believer that denying same-sex couples the right to marry makes an impermissible classification based on sex and is hence unconstitutional in almost the exact same way the California Supreme Court in 1948 found racial classifications in marriage impermissible.  (See my post on Perez v. Sharp or my posts on sex discrimination).  Some people, like Professor Jack Balkin, feel this argument has a disadvantage in that it's not really sex discrimination but rather sexual orientation discrimination.  Well, there is a great amicus brief being (pdf)  filed in the Washington cases by NOW and other women's rights organizations that explains how sex discrimination and sexual orientation discrimination are linked and how denying same-sex couples the right to marry is detrimental to all who wish to be free from traditional gender stereotypes.  I am hopeful the court will make use of this brief to strike down Singer. 

[For more information on the numerous amicus briefs filed in support of the couples see this press release from Lambda.]    

Judging the Judge

In the last post I tried to provide a summary of Justice Ling-Cohan's decision without commentary.  In this one I thought I would share some of my thoughts on the opinion.  I'll look at four areas:  The Due Process Argument, The Equal Protection Argument, The State Interests, and finally The Families.

I. Due Process

The bulk of the opinion concerned the due process argument.  Namely that the right to choose whom one marries is a liberty interest protected by the state constitution.  On some level this is unremarkable.  Certainly most people would expect that our right to liberty was being infringed if all marriages were arranged by a governmental Yentl and the Department of Matchmakers.  It would still be troubling even if the government had a good reason for doing so.  Perhaps some study showed that arranged marriages are less likely to add in divorce.  The reason we feel this violates our liberty is simple.  Marriage is a public act, but whom we take for a spouse (and whether we take a spouse) is fundamentally a personal decision that no one should take from us. We might even make a mistake in whom we choose to marry, but it is our mistake to make.  Does this reason hold any less because the spouse one chooses is of the same sex?  No.  This right to choose one's own spouse has nothing to do with an ability to procreate.  Few would argue that sterile people no longer have any right to choose their own spouses.  In fact it would be more even more disturbing if the government were to arrange marriages in order to breed.  It seems clear that if the government is going to forbid a marriage it should have a good reason to do so. 

Now Professor Balkin worries that such a right to marry would undermine incest and polygamy laws.  He criticizes Justice Ling-Cohan for failing to distinguish same-sex marriage from these situations.  Polygamy laws though are not undermined at all by this right to choose one's spouse, a right that is already well established.  Polygamy does not infringe that much on a right to choose one's spouse.  It just says you must make a choice.  You can't have more than one spouse.  In a similar fashion the US Constitution forbids someone from serving simultaneously as both President and US Senator.  That does not restrict their liberty to serve in public office.  It's just incompatible to hold both offices at the same time.  I do agree that a right to marry whom one chooses would seem to require a compelling interest for incest restrictions.  I believe there are such compelling interests, though, at least when it comes to marriages between kin close enough that sexual relations are criminal.  Forbidding marriages between kin where sexual relations are permitted, though, might be difficult to defend.  That issue, though, was not before the court and it is perfectly reasonable (even appropriate) for the Justice not to address it.  For more on this line of thought see my posts on the topic from a year ago. 

II.  Equal Protection

I believe Justice Ling-Cohan was too quick to essentially dismiss the sex-based equal protection argument.  First of all she says that the law treats men and women equally.  That depends on what one means by equal.  Women are allowed to marry men.  Men are not allowed to marry men.  There are parallel restrictions, but does that imply equal.  Would gender segregated schools be acceptable (provided the schools were "equal")?  She claims, without any support, that such parallel restrictions are only problematic if they stem from discriminatory intent.  That is itself not so clear, but even if that were the case, she would seem to at least agree that "discriminatory intent" does not necessarily mean animus toward a group but could include the assigning of traditional gender roles.  This is important as most sex discrimination is not done out of any animosity to women or even a sense of male superiority, but rather a belief in certain traditional gender roles.  Justice Ling-Cohan writes, though:

Moreover, with the gradual equalization of the rights of men and women in marriage, it cannot be readily argued that the requirement that a married couple consist of a man and a woman is intended to, or does, reinforce traditional sex roles.

I note a few things.  First of all the equalization of the rights of men and women within marriage has been done gradually.  The gender requirements of marriage are likewise nothing new.  Is it unreasonable to suppose then that they might be connected to views about gender roles within marriage?  The fact that a legislature has chosen not to do away with these gender requirements speaks to a view on traditional sex roles.  The state even lists "tradition" as one of its two main arguments for the requirement. The same tradition they appeal to within marriage is one for which the role of husband and wife were quite distinct. Why should it matter today whether one's spouse is male or female unless males and females have distinct roles prescribed roles? 

Justice Ling-Cohan's claim that the sexual orientation discrimination was "indisputable" also struck me as strange.  Certainly the state is disputing the fact that they are discriminating against gays.  She said herself that gays and lesbians were not individually prohibited from marriage.  I guess she means that same-sex couples are being treated unequally (which of course they are), but this was a little unclear.

III.  State Interests

The State's asserted interests, tradition and uniformity, do strike me as rather feeble, but then those were the grounds accepted by a trial court in New Jersey recently.  Tradition may often guide us and alert us that there may be good reasons for something, but is on its own a rather weak reason for continuing to do something.  I tend to believe that if there is a long standing tradition for something, there ought to be some reason for changing it, but that has been fairly well established here.  Allowing same-sex couples to marry could be greatly beneficial to these families.  Once that case has been made it is up to the traditionalists to provide something more than, "Well, that's the way it's been done". 

The uniformity seems an even worse argument.  What harm does the state occur by granting marriage licenses that may not be recognized elsewhere?  Yes the couples will suffer some harms, but no more so than if they had no marriage license.  And New York does not even gain uniformity by prohibiting same-sex marriages.  It borders Canada and Massachusetts which both allow such marriages, and Connecticut is likely to allow them soon as well.  (This is not to mention Vermont's civil unions which are designed to be effectively same-sex marriages).

IV.  The Families

One of the best things about the decision was its focus on the real harms suffered by these families (including and especially the children) because the adult couples were denied access to marriage.  Such analysis would be especially important in New Jersey which uses a balancing test (state interests vs. individual interests) instead of a tiered approach to due process claims, but in any case it is important to keep in mind the people involved and how it effects them.  Nothing could send a clearer message that marriage matters deeply to the welfare of families than to allow these families to enter into it.

Hernandez v. Robles

So I thought I’d jump back in by discussing the recent NYC same-sex marriage case Hernandez v. Robles. Before we get into a summary of the decision it is worth noting the implications of the decision. The defendant in the case was the City Clerk of the City of New York, and hence it was essentially up to New York City Mayor Michael Bloomberg to decide whether to appeal the ruling. [For what it’s worth disclaimer: I am currently employed by New York City in a capacity in no way related to this case].  When the decision came out on Friday there was some speculation that Mayor Bloomberg might not appeal, thus allowing the clerk to issue marriage licenses within the next 30 days. Bloomberg quickly  ended speculation  yesterday by announcing that while he supported same-sex marriage--and would work to get legislation for it passed in Albany if the lower court ruling was struck down--he was going to appeal the decision so as to get a definite ruling from the state’s highest court as soon as possible. He also said that he would seek to expedite the appeal directly to the highest court (essentially skipping a review by an intermediate appellate court). There were no disagreements as to the facts in this case; it was entirely a question of law, so there is little consequence to this decision other than to speed up the process of getting the state’s highest court to examine the issue. I figure we should find out soon whether the appeal is indeed expedited. In the meantime, I thought I would summarize the court’s decision anyway below and in a subsequent post weigh in with my own opinions and analysis on some of the controversial issues involved.

Justice Ling-Cohan wrote a 62 page opinion (pdf) which is well worth reading for those who are interested and have the time, but for those who would like a summary I offer the following with the same outline used by her.  Throughout I will freely quote from the opinion omitting internal citations.

I. Background

As noted earlier the facts are not in dispute and are fairly straightforward. Five committed same-sex couples sought marriage licenses from the City Clerk of the City of New York. They were denied and given copies of letters from the city’s Law Department and from the Attorney General of New York both offering the opinion that New York State Law does not currently allow same-sex marriage. (The AG’s letter did note that there were serious constitutional questions about such exclusion that were best resolved by the courts). They were also given some information about New York City's Domestic Partnership registration program.

II. Discussion

A. Disadvantages Suffered by Plaintiff Couples and their Children

It's best here to just quote directly from the opinion:

Marriage provides an extensive legal structure that protects the couple and any children. It is not disputed, for example, that among many other disadvantages, plaintiff couples may not own property by the entireties; file joint state income tax returns; obtain health insurance through a partner's coverage; obtain joint liability or homeowner's insurance; collect from a partner's pension benefits; have one partner of the two-women couples be the legal parent of the other partner's artificially inseminated child, without the expense of an adoption proceeding; invoke the spousal evidentiary privilege; recover damages for an injury to, or the wrongful death of, a partner; have the right to make important medical decisions for a partner in emergencies; inherit from a deceased partner's intestate estate; or determine a partner's funeral and burial arrangements...

….One of the most important benefits of marriage is the securing of the bonds between parents and children and the protection of children raised in the family. For example, the children of parents in same-sex relationships are not necessarily covered by the statutory duty of support. Under State law, when a couple elects to conceive a child through donor insemination, only the married couple can ensure that at birth the child has an automatic legal parent-child relationship with each, upon their written consent.

Marriage also imposes reciprocal responsibilities on spouses, which serve to protect the family, including the legal requirement that spouses provide each other with financial support or face legal redress in certain circumstances, such as if one spouse is a recipient of public assistance. Spouses, but not unmarried couples, are permitted to take out insurance policies on each other....

...Furthermore, plaintiff couples and their children suffer numerous intangible burdens as the result of being relegated to a caste-determined status that is different from that of families in which the adult couple has been allowed to marry.

B. New York’s Domestic Relations Law (DRL)

There were two important points discussed in the section. First of all, the court agreed with the Attorney General’s opinion that while the state DRL does not expressly forbid same-sex marriage one can infer from the history and gendered language of the law that the legislature did not intend to authorize such marriages.

The second issue was whether a decision of a higher court (in Matter of Cooper) had settled the question facing this court. Once again the court agreed with the AG opinion that the previous case did not really address the issue of a right to marry (it concerned instead whether the surviving partner of an unmarried same-sex couple had to be treated as a surviving “spouse”). The court also provided a few other reasons for why Matter of Cooper was not too relevant for addressing the current issue before the court. Those concerns generally dealt with the Cooper court’s reliance on a federal case (from Minnesota in 1971) called Baker v. Nelson which found no federal constitutional problem in prohibiting same-sex marriage. The court found Baker v. Nelson to be of little value because (1) The state constitution could offer more protection than the federal constitution and (2) even at the federal level cases subsequent to Baker v. Nelson has little precedential value because of subsequent US Supreme Court doctrine.

C.  Plaintiffs Raise State Constitutional Due Process and Equal Protection Claims

The court noted that even when the language in the New York State Constitution was identical to language in the federal constitution, it could provide (and has provided) more protection. It then dealt with the two issues separately.

1. The Restriction on Same-Sex Marriage Violates Fundamental Due Process Protections.

Like the US Constitution, the NY Constitution guarantees that “[n]o person shall be deprived of life, liberty, or property without due process of the law” and it is well established that the right of liberty includes the right to marry. The opinion looked at several cases discussing this right to liberty and the broad principles involved of an individual making their own choices in certain matters. The court looked at this more closely in...

a.  The Due Process Right to Liberty Protects the Right to Marry

Again let me turn to quoting the decision (Note that the Court of Appeals is New York State’s highest court and People v. Onofre was a 1980 sodomy case):

New York courts have analyzed the liberty interest at issue in terms that recognize and embrace the broader principles at stake. The Court of Appeals, in holding unconstitutional  New York's consensual sodomy prohibition, did not define the nature of the claim with such specificity as to obscure the real right at stake (such as, for example, defining the claim as a fundamental right to engage in non-marital oral sodomy in an automobile parked on a city street). People v. Onofre. Instead, the Court's review of the constitutional deprivation focused on the individual's broader liberty interest, a fundamental right of personal decision extending to non-marital sexual intimacy.

Justice Ling-Cohan returned to the issue of how specific or broad to define the right to marriage later in (II)(C)(1)(d).

b.  Defining the Protected Marriage Rights

The court then noted the established right to marry covers not only who may marry, but the right to choose whom one may marry. It is this right that is being infringed in the current case. That, for example, was one of the problems with laws prohibiting interracial marriage. Nobody was forbidden from getting married by such laws, but they were forbidden from making certain choices as to whom to marry. Thus the court subjected this case to strict scrutiny. That is at this point it was up to the state to provide a compelling interest for denying these couples marriage licenses.

c.  No Compelling State Interests Require A Bar on Same-Sex Marriage

The court looked at the two interest raised by the defense:

i.  The State Interest In Keeping the Traditional Definition of Marriage

The court noted that if tradition alone were even a legitimate state interest to uphold a law, there would still be a marital rape exception. There would still be laws prohibiting sodomy. If one instead looks at the reasons for the tradition, it may be argued that marriage is uniquely tied to the procreation and rearing of children. The court responded, 

However, it is also indisputable that the DRL does not bar women who are past child-bearing age to marry, and that the long-term union of a man and a woman is no longer the only familial context for raising children.

It noted how a number of the plaintiffs were raising children. More importantly, there was no argument for how allowing same-sex couples to marry would harm the marital arrangements of any other couple. The court continued,

Excluding same-sex couples from marrying may, in fact, undermine the State’s interest in providing optimal environments for child-rearing, in that children of those families are then not afforded the same legal, financial and health benefits that children of married couples receive.

Finally the court noted that the concept of marriage has evolved, an issue it dealt with later in (II)(D)

 

ii. Ensuring Consistency with Federal Law and Other States As a State Interest

The court fairly quickly dismissed this claim as being even a legitimate interest. For one thing the same-sex couples (and anybody else) are no worse off if their marriage isn’t recognized elsewhere. Furthermore, “an elaborate body of comity law already exists nationwide to deal with inconsistency in State laws regarding marriage.”

d.  Defendant’s Argument That Plaintiffs Must Establish A Fundamental Right to Same-Sex Marriage is Not Persuasive

Here the court returned to the argument that the liberty interest at state was not so much a right to marry, but a right to same-sex marriage. The court noted that this type of thinking (defining the issue with such specificity as to obscure the principles involved) was just the type of thinking criticized by the US Supreme Court in  Lawrence when it overturned Bowers. (Federal cases dealing with sodomy). Likewise there was no fundamental right to interracial marriage at the time of Perez (a 1948 California case) or Loving (a 1967 Federal case), or fundamental right of inmates to marry at the time of Turner, etc.

The court further noted in regards to the argument that same-sex marriage is not marriage because that’s not what marriage has been:

Marriage is no more limited by the historical exclusion of same-sex marriage than it was limited by the exclusion of interracial marriage, the legal doctrine of coverture, the pre-1967 restrictions on remarriage following divorce in New York, longstanding restrictions on divorce, or the “marital exemption” to the crime of rape. 

The court spent some time discussing each of these examples of marriage changing from what it had traditionally been.

 

2. Plaintiffs’ Claim That the Restriction on Same-Sex Marriage Violates Equal Protection.

The court sounded skeptical of the sex-based equal protection argument. Justice Ling-Cohan noted that the law treats men and women equally and while this could still be a problem if there were discriminatory intent, but

Here, however, there is no evidence that the Legislature had a specific intent to bar same-sex marriage. Moreover, with the gradual equalization of the rights of men and women in marriage, it cannot be readily argued that the requirement that a married couple consist of a man and a woman is intended to, or does, reinforce traditional sex roles.

The court concluded, though, that it need not address this argument as it “indisputably” discriminated against the couples on the basis of sexual orientation. And regardless of whether that would subject the law to higher scrutiny the state had failed to provide even a legitimate state interest.

D. New York's Evolving Commitment to Protect and Respect Same-Sex Relationships

Justice Ling-Cohan argued that the change being made in this decision was consistent not only with the way marriage was evolving, but with the way New York’s attitude toward respecting and protecting same-sex relationships was changing.

III. Remedy

The court first noted that it is indeed the court’s role to rule on challenges to a statute’s constitutionality. As for the actual remedy, there were two possibilities. The court could either strike down the marriage laws, or read them gender neutrally. The latter seemed the more natural choice, and in fact, past constitutional violations of the DRL have been remedied by reading words in a gender-neutral manner. That was what the court would order here.

IV. Summary

The court concluded with some words regarding the importance of marriage and the importance of being able to choose our spouse without governmental interference.

[some typos corrected]